Guidry v. South Louisiana Contractors, Inc.

Decision Date24 March 1980
Docket NumberNo. 77-3435,77-3435
Citation614 F.2d 447
PartiesHarold J. GUIDRY, Plaintiff-Appellee, v. SOUTH LOUISIANA CONTRACTORS, INC., a/k/a Soloco, Inc., and Liberty Mutual Insurance Co., Defendants-Appellants, South Louisiana Contractors, Inc., a/k/a Soloco, Inc., Defendant-Appellee, J. P. Messina Contractors and Hartford Insurance Co., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, John G. Torian, II, John A. Jeansonne, Jr., Lafayette, La., for defendants-appellants.

George W. McHugh, Jr., St. Martinville, La., Domengeaux & Wright, Bob F. Wright, Anthony Moroux, Lafayette, La., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Louisiana.

Before GEWIN, RUBIN and SAM D. JOHNSON, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Familiar questions whether an employee was a Jones Act seaman and, if so, which of two companies is liable for his injuries arise in yet another of the protean factual situations presented by amphibious industrial operations. We conclude that the issues of negligence, comparative negligence and quantum of damages were properly put to the jury, and that the trial court correctly decided to direct a verdict on Jones Act status as to one of the putative employers and to dismiss the claims of indemnity and contribution between the defendants. However, the basic questions were whether or not at the time of his injury the plaintiff was a Jones Act seaman in the employment of one of the defendants and whether that defendant was liable for the negligence that caused the plaintiff's injury. Finding that these questions were not properly presented to the jury, we reverse the judgment on these issues only and remand for a new trial on them.

I.

South Louisiana Contractors, Inc. (Soloco) owned a barge that carried a large dragline. Harold Guidry, a cook on the vessel, had in the past worked as an oiler on the dragline. J. P. Messina Contractors (Messina) had a contract to build a large pond. To do this job, Messina arranged to rent the dragline from Soloco for a period expected to be about two months. Soloco usually rented the barge complete with dragline and crew for $1800 a day. Soloco required that its personnel operate the dragline because it did not wish this expensive equipment to be in unfamiliar hands. Because Messina needed only the machine, Soloco agreed to move the dragline ashore and to supply it to Messina with operators, but without the barge and other crew members, for $1500 a day.

However, Messina's union contract required it to employ only union workers, and, of course, to pay union scale wages, an amount $2.50 to $3.00 per hour more than Soloco had been paying its dragline crew. Therefore, Soloco and Messina agreed that Messina would get union cards for the dragline personnel, put them on its payroll, pay them union scale wages, pay the state unemployment tax, pay the F.I.C.A. tax, provide state workmen's compensation insurance and pay for the fuel used by the dragline. In turn, Messina would deduct from the $1500 daily payment to Soloco that part of the amount it spent for wages that Soloco would have paid had the personnel been working for Soloco's usual pay rate, the insurance and employment taxes based on these rates and the cost of fuel.

Instead of remaining on the barge as cook, together with other workers not needed ashore, Guidry asked to be assigned to dragline work as an oiler in order to get the higher wages. Guidry's request was honored on the basis of his seniority. While at work on the land job, he received his orders from the dragline operator, Larry Hebert, who had been the captain of the barge and who also was assigned from Soloco to do the Messina job. Soloco continued to pay Hebert captain's wages, to look to him to supervise the employees who remained on the barge, furnished him a truck and paid for his travel to and from the Messina job. It also continued to carry both Hebert and Guidry on its pension and hospitalization plans.

Messina's job superintendent directed all of the dragline operations. He gave orders to Hebert, who in turn directed the members of his crew. There was a dispute about the amount of control, if any, that Soloco retained over the crew while they were on the Messina project. There was evidence, though, that Messina could not discharge any member of the dragline crew without Soloco's permission.

Guidry was injured about two weeks after starting the job when he was walking out on the elevated boom of the dragline to adjust a cable and was thrown from it. The accident was allegedly caused by Hebert's negligence in permitting Guidry to walk on the boom while it was raised instead of lowering it.

Messina began to pay Guidry compensation under the Louisiana Workmen's Compensation Act. Guidry then sued both Soloco and Messina under the Jones Act, 46 U.S.C. § 688, contending that he was a seaman employed by Soloco but working under Messina's control and was entitled to recover from both for negligence.

Shortly before trial, Guidry settled his claims against Messina for $75,000 and the right to retain all compensation payments he had received. Guidry's Jones Act claim against Soloco went to trial. Messina claimed indemnity from Soloco for the amount paid Guidry and Soloco contended that, if Guidry recovered, it was entitled to indemnity from Messina or a credit on Guidry's judgment for the amount he had received in settlement. Even though Messina had compromised Guidry's claim, whether Messina had been Guidry's Jones Act employer was an issue in resolving the claims between Soloco and Messina. The trial judge held that the evidence of Jones Act status as to Messina was insufficient to warrant a jury verdict and that, as to Messina, Guidry was not a member of the crew of a vessel.

The remaining crucial issues, all controverted, were whether Guidry nevertheless was a member of a crew of a vessel when he was injured so as to give him Jones Act status as a seaman, whether Soloco was his Jones Act employer and who was vicariously liable for Hebert's negligence. These were submitted to the jury on the following interrogatories:

"Was plaintiff, Guidry, temporarily assigned by Soloco to perform work on land with the intention that Guidry would return to work on the dredge MR. BILL at the conclusion of the shoreside work?"

"Do you find that Soloco completely divested itself of control over plaintiff Guidry and Larry Hebert in connection with the work being performed by them on the dirt excavation job during the two-three weeks preceding the accident?"

"Do you find that Soloco was guilty of negligence which caused, even in the slightest, plaintiff's injuries?"

The jury answered each of these questions in the affirmative. It returned a verdict for Guidry in the amount of $150,000 but found him contributorily negligent to the extent of 9.6%. The district court denied Soloco's claim for a credit for the $75,000 settlement Guidry had received from Messina on the basis that Messina was shielded by the Louisiana Workmen's Compensation Act. The judge denied Messina's claim for indemnity because Soloco was not given credit for the settlement and because he found Messina also at fault, and he denied Soloco's claim for indemnity because of the compensation shield and Soloco's fault. Only Guidry was satisfied with the result; the other parties appealed.

II.

At the outset, we dispose of contentions that only further muddy the waters. Soloco and Messina raise various cross-claims of contribution and indemnity, but these are hypothetical in view of the facts presented: if there was negligence (and the jury found there was), it was attributable to Hebert. If Hebert was at fault, either Messina or Soloco is liable. While there might be instances of joint control of one person by two employers giving rise to both becoming vicariously liable for his actions, see Restatement (Second) of Agency § 226, Comment a (1958), the facts present no such possibility here. The one employer who was vicariously liable for Hebert's actions has no implied right to claim indemnity from anyone other than Hebert, and there can be no contribution between the employers because there was no joint fault in the situation actually presented.

III.

We turn now to the Jones Act claim. 1 Only seamen are entitled to the benefits of that law. 2 The traditional formulation of the requirements for identifying a seaman are: (1) he must have a more or less permanent connection with (2) a vessel in navigation and (3) the capacity in which he is employed or the duties which he performs must contribute to the function of the vessel, the accomplishment of its mission or its operation or welfare in terms of its maintenance during its movement or during anchorage for its future trips. Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157, 1161 (5th Cir. 1972); Offshore Co. v. Robison, 266 F.2d 769, 775 (5th Cir. 1959). See generally G. Gilmore & C. Black, The Law of Admiralty § 6-21 (2nd ed. 1975).

A Jones Act claim also requires proof of an employment relationship either with the owner of the vessel or with some other employer who assigns the worker to a task creating a vessel connection, for "(b)y the express terms of the Jones Act an employer-employee relationship is essential to recovery." Spinks v. Chevron Oil Co., 507 F.2d 216, 224 (5th Cir. 1975). The employer need not be the owner or the operator of the vessel. Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972). Independent contractors may be liable under the Act, Mahramas v. American Export Isbrandtsen Lines, Inc., 475 F.2d 165, 171 (2d Cir. 1973); Barrios v. Louisiana Construction Materials Co., 465 F.2d 1157 (5th Cir. 1972). And a third person who borrows a worker may become his employer if the borrowing employer assumes enough control over the worker. Ruiz v. Shell Oil Co.,...

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